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The ballots cast in Waukesha County during the June 5th Gubernatorial recall in Wisconsin appear to be safe from destruction at the hands of one of the nation's most notorious election officials.

For now.

In our exclusive exposé earlier today, we detailed the threat made by the infamous Waukesha County Clerk Kathy Nickolaus to "destroy" the county's ballots from the historic recall election between Gov. Scott Walker and Milwaukee Mayor Tom Barrett, as early as noon today, in apparent contravention of state law. The threat to destroy the ballots was made even as they (and the rest of the ballots cast in the election across the state) are still subjects of public records requests by a number of citizen groups attempting to verify the otherwise completely unverified results of the race by examining the ballots by hand for the first time.

Nickolaus had denied the request by the largest group attempting to oversee the results of the election, and informed the requesters (see our previous article for her full responses): "Unless I receive a court order by noon on Monday, August 13, 2012 directing otherwise, I will proceed to retain or destroy the election materials from the June 5, 2012 Recall election according to state statute and GAB guidelines."

Her arbitrary deadline, the citizen auditors charge is in contravention of state public records statutes requiring 60 days after a request has been denied, before action can be taken. The BRAD BLOG has been able to confirm the legal 60 day requirement with several state officials today. Nickolaus' July 17th denial to grant the requesters access to the ballots means that, by law, she is barred from destroying the public records until at least September 15th.

After our story was published this morning, folks in WI seem to have sprung into action, leading the County District Attorney, the Waukesha County Corporation Counsel (who serves as Nickolaus' attorney) and the state's Government Accountability Board (G.A.B.) to respond with confirmation that the ballots in question will not be destroyed at this time, and were, instead, being moved from the Clerk's office, where they have been since the election, to off-site storage as of this afternoon.

"It would not be proper to destroy such materials at this time," County D.A. Brad Schimel confirmed to The BRAD BLOG late this afternoon, noting that "no records would be destroyed today, nor would they be destroyed until at least 60 days after the denial of the public records request"...

Badger Democracy contacted Waukesha County District Attorney Brad Schimel for comment at 8:30 this morning. Schimel stated he knew nothing of the requests prior to this morning, expressed his concern about the Nickolaus situation, and "…now is not a good time to be destroying any election materials." When asked about the Nickolaus emails, Schimel stated he would contact County Corporate Counsel Thomas Farley and call back with an update.

At 10:15 am, Corporate Counsel Farley called back Badger Democracy with only the following statement, citing attorney/client confidentiality:

Kathy Nickolaus, my client, will act responsibly.

Within minutes, DA Schimel called Badger Democracy with further information. After discussion with the County Clerk's office, Schimel stated "Nothing is being destroyed today. Measures have been taken to preserve all election materials from the recall election, and things are on hold at this point."

Schimel also expressed his concern in the situation in light of Nickolaus not seeking re-election for another term. Kathy Nickolaus is out of the office today, and unavailable for comment.

By late this afternoon we were able to confirm most of Badger Democracy's report with both state and county officials.

D.A. Schimel, in response to a number of questions we'd sent, confirmed that he took up the matter with Waukesha Corporation Counsel Thomas Farley (who represents Nickolaus) when the matter was brought to his attention today.

He says Farley gave "his assurance that no records would be destroyed today, nor would they be destroyed until at least 60 days after the denial of the public records request."

"I have an interest in attempting to avoid Public Records Law violations," Schimel wrote via email, "especially when destruction of the records in question is imminent. I think this interest is especially significant when the records in question relate to public confidence in our elections."

"Thus, after becomming [sic] aware of these issues, I inquired and have been advised that the Clerk will not be destroying any records at this time. I do not know whether there is any plan to destroy them at a future date. It appears that the Clerk could legally destroy the records any time after 60 days have expired from the date of the denial of the records request. I have found no law that requires retention of the materials after that period."

"As the elected Clerk, [Nickolaus] has sole authority over those documents," he explained, "and I only have authority to intervene if there is a basis to conclude a law has been violated. If the requester of the records desires an order prospectively prohibiting the destruction of the records, they should seek a court order."

He went on to say: "I do not have sufficient information at this time to determine whether the denial of the records request was proper. The information I have received thus far is fragmented and unverified. If I receive a complaint from the requester of the records that sets for a potential violation of the Public Records Law, I will take action to address that complaint."

Reid Magney, the Public Information Officer for the Wisconsin Government Accountability Board (G.A.B.), the state's top election agency, responded to our query as well. Here was his response:

Today, the G.A.B contacted Waukesha County Corporation Counsel regarding claims that ballots and election materials from the June 5 Recall Election would be destroyed today. The Waukesha County Corporation Counsel's office indicated that these materials would be transferred to offsite storage today. All further questions should be referred to Waukesha County Corporation Counsel or Clerk. The G.A.B. is not authorized to provide Waukesha County with legal advice regarding the public records law, nor does the G.A.B. have any authority to enforce the public records law.

We followed up with Magney to inquire as to whether the ballots were still in the custody of Nickolaus, even though they were being moved to off-site storage, or whether custody had been transferred to another party in the bargain.

"They're still in Waukesha County's custody," he replied.

Our call to Nickolaus' attorney, Waukesha County Corporation Counsel Thomas Farley, seeking further information, was not responded to today.

For now, at least, it seems the ballots in Waukesha County are "safe" and can hopefully be counted by actual human beings at some point in the near future. Though, for that to happen, the Hand Count Votes Now! coalition, which made the open records request in all 72 of the state's counties, in partnership with Wisconsin Wave, will have to challenge and reverse Nickolaus' July 17 denial in order to gain access to examine ballots. At that time, as we detailed this morning, Nickolaus issued her refusal to grant access on the basis that the request was "too broad" and "overly burdensome."

10 other counties in the state so far --- and some 15 scheduled to be examined in the near future by an assembled team of 750 citizens volunteers across the state --- disagree with Nickolaus' determination. Those counties have granted the citizen auditors access to the ballots to oversee the results of their election. Moreover, as we've discussed with Election Integrity and public records expert John Washburn (a Republican and Scott Walker voter) from Fair Elections Wisconsin, neither of Nickolaus' reasons for denying access to the ballots seem to have any basis or legitimacy under state law.

For now, in any case, the Waukesha ballots have not been destroyed, so the fight for citizen oversight of elections in one of the state's most Republican counties, and the rest of the state as well, will continue...

• See our original lengthy article from this morning, on the full background and reasons for the statewide public records effort to verify the results of the June 5th recall election --- and information on what the citizen auditors have discovered to date --- right here.

so the records are not goign to be destroyed. Good. But when the hand counters finally are able to access the records, if past experience is any guide, (such as in New Hampshire in the primary race between Clinton and Obama), the ballots will languish for quite some time where no one can verify what is happening to them. It would sure be great if they could use the fact that she is on record as wanting to destroy them, in order to force her to secure them in a fashion so that we can know that they cannot be messed with. Legal people have tape that can't be removed without being "tamper-evident" and so on. It seems to me like it would not be an onerous thing to require that such seals be put on asap now, so why can't they be made to do that? It would increase the confidence of the public in our elections, after all...

Outstanding reporting today, Brad.
I could just lick your entire face for the time and devotion you put in on these critical updates from WI, today.

Thank you.

Only one quibble with your above piece (and LoveofTruthGuy is keen to touch on this @#1:

"For now, at least, it seems the ballots in Waukesha County are "safe"...

Um. Like those Brookfield ballot bags were 'safe'? Where is this "off-site" facility? Are the election materials secure there? In a vault? Up a tree? Are there working security cameras on-site? Who has key card access? IS there key card access? Can we get a citizen videograpaher out there to scope it out?

New Hampshire Primary recount in 2008 (Clinton / Obama / Ron Paul / Kucinch anomalies) are another great example of why I wish I could personally baby-sit those Waukesha ballots...like, NOW.

In the NH 2008 Blackboxvoting.org chain of custody investigation we found state employees after hours unloading ballot boxes in the dark outside of public view - NOT securing them in the vault and then doing something behind closed doors that they were so keen on us NOT seeing they used K9 units to keep us from filming:

I can't speak for THE WAVE - but the most hopeful outcome I can think of is that this info gets blasted out wide thanks to citizen volunteers and good journalists like Brad and we can NEGATE the false meme that WI is suddenly a right-wing leaning state who, on June 5, delivered a "referendum" on whether teachers, firefighters and police officers deserve their pensions.

The more people that can glean the botched election rubics cube before November, the closer we get to critical mass and an informed electorate - the less likely this same unsubstantiated narrative will be effectively used to fuel more election wonk in November.

I am sorry I didn't respond yesterday as I was not in the office. We have no intention of shredding or destroying any ballots from the June 5th election. The law states that after the office receives a public records request we must wait 60 days. We received a new public records request last Thursday. In addition we are in the middle of another group with a public records request. They started counting ballots last week from the June 5th election. I have no destruction date on the calendar at this point for the June 5th ballots.

If you would like a copy of the letter sent to the requester from last Friday I would be happy to send.

For those who have asked, yes, I believe the comment at #8 above is from Kathy Nickolaus (or someone in her office). I'm attempting to confirm that at this time, and to get more info from her, since she suggests that ballots could be destroyed 60 days after a request, though the law actually requires 60 days after the denial of a public records request.

That means that the earliest ballots could have been destroyed under HCVN & Wisconsin Wave's request would be Sept 15th, following Nickolaus' July 17 denial. But even if the law said 60 days from the date of the request (which it doesn't), she couldn't have destroyed ballots until Sep 2 at the earliest.

Why then she imposed an artificial Aug. 13th destruction date is still an open question. Among several.

#8
"In addition we are in the middle of another group with a public records request. They started counting ballots last week from the June 5th election."
Another group is already counting them. Who is that? They were moved to another location while being counted?

Yes Mary Magnuson's groupd has counted about 10,000 of the 23,000 vited ballots from the City of Brookfield only. That counting effort was suspended last Friday, August 10, 2012 because the staff would be unavailable to enforce the GAB "No touch" directive during this week because of the regularly scheduled Federal primary on Tuesday, August 14, 2012.

The counting of the City of Brookfiled ballots will resume, but the exact dates and time are still to be determined. The soonest that scheduling will start is next Monday on the 20th. and that is just the negotiation of when the Brookfield only audit can resume not the actual resumption of the audit.

O/TSAN DIEGO (CN) - A federal judge refused to throw out claims that a right-wing activist violated the privacy of an ACORN worker who was taped counseling defendant James O'Keefe, who sought advice on how to fill his house with underage prostitutes.

Don't forget there were unanswered questions from the 8/9/11 vote to recall WI state senators, in which Nickolaus was managing the only precinct to report late, claiming an unusual number of absentee ballots received in the election.

Isn't it odd that Republicans in state government are putting in ID laws because they're so concerned about election fraud, yet when Democratic groups want to check for mistakes on ballots, they suddenly think it's too much of a burden? Hmmmm

COMMENT #21 [Permalink]...
Worried About November
said on 8/15/2012 @ 2:04 pm PT...

The Journal Sentinel of 1/17/11 described Nickolaus' response, following an audit of the election security in her office, to some recommendations made by County Board members (such as not using the same ID and password for three employees but instead assigning individual ones as required by county policy, so that an audit trail of each employee's work exists):

"During one part of the discussion, [County Board Chairman Jim] Dwyer erupted in exasperation at Nickolaus' facial expressions.

"'There really is nothing funny about this, Kathy,' he said, raising his voice. 'Don't sit there and grin when I'm explaining what this is about.

"'Don't sit there and say I will take it into consideration,' he said, asking her pointedly whether she would change the passwords.

"'I have not made my decision,' she answered. After supervisors continued to press the issue, Nickolaus indicated she would create three different passwords.

"'This isn't that big of a deal. It isn't worth an argument,' she said. 'This is ridiculous.'"